When a veteran is unable to work but the VA rating schedule does not permit a total disability rating, the veteran can still achieve a total disability rating based on individual unemployability (TDIU).
What is TDIU?
In its regulations, VA asserts that it is its policy that “all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” Substantially gainful occupation has been defined as an occupation that provides the veteran with an annual income that exceeds the poverty threshold for one person. Further, total disability exists “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation."
Eligibility for TDIU
A veteran can be eligible for TDIU in two ways.
First, the veteran's ratings can make him or her eligible if he or she has 1) a single disability rated at 60 percent or more or 2) two or more disabilities with a combined rating of at least 70% and at least one disability rated at 40 percent.
Second, the Regional Office can refer the veteran's claim to the Director, Compensation and Pension, for extraschedular consideration of a total disability rating. This option is available if the veteran's ratings do not meet the ratings requirements above but he or she, nevertheless, cannot be gainfully employed because of service-connected disabilities. However, this method requires the presentation of an unusual or exceptional disability picture. This means that there should be evidence of marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards.
Making the TDIU Argument
Arguing for TDIU can be complicated. It requires a review of the veteran's education, employment history, disabilities, and more.
Under its regulations, VA may only consider the effects of service-connected disabilities upon a veteran’s ability to work. VA may not consider the veteran’s age or effects of nonservice-connected disabilities in making this determination. When seeking a total disability rating and the veteran has a nonservice-connected disability that may affect employment, it is critical to give VA an expert medical opinion distinguishing the role service-connected disabilities play in the ability to work. In many instances, a vocational expert opinion is also necessary to demonstrate the veteran's inability to follow a substantially gainful occupation. The expense for these evaluations is small compared to the potential benefits to be attained with a total disability rating.
Marginal employment is defined as annual income that does not exceed the poverty threshold for one person. It is also important to note that many individuals who should be rated as totally disabled continued to work out of necessity or are able to remain in a protected environment, wherein special accommodations are made for the veteran’s disabilities. This can be construed as marginal employment as well. These facts, if present, should be carefully laid out to VA adjudicators because, too often, VA construes such employment as reflecting the ability to engage in substantially gainful employment.